9th Circuit must bring sense of urgency on homelessness
On any given night across the United States, almost 600,000 Americans are homeless. Nowhere is the problem worse than in California and eight surrounding states, which comprise a quarter of the total U.S. population but 44 percent of the nation’s homeless population and 69 percent of all unsheltered homeless Americans.
Those nine states also happen to fall within the jurisdiction of the U.S. 9th Circuit Court of Appeals, which is set to begin oral arguments today (Aug. 23) in a case (City and County of San Francisco v. the Coalition on Homelessness) that could have far-reaching consequences for the ability of local governments to help those in need of shelter while also maintaining public health and safety standards and ensuring the rights of everyone to enjoy access to a wide range of public spaces.
As the court considers its decision, it must recognize the humanitarian emergency posed by unsheltered homelessness and allow cities latitude to bring people indoors and save lives.
The case in question stems from a temporary ruling last December by a federal judge who effectively said that unless San Francisco could provide shelter for every homeless person the city could not involuntarily remove a single person from the street or remove a single homeless encampment. It was akin to telling a fire department that unless it could simultaneously put out multiple fires raging at the same time it couldn’t extinguish a single one. This all-or-nothing ruling has severely handcuffed San Francisco from taking almost any reasonable action to address a growing humanitarian crisis.
And it’s just one of several rulings in different cities since 2018 when the 9th Circuit ruled in a separate case (Martin v. Boise) that penalizing homeless residents with fines, incarceration, or confiscation of property for camping illegally without first offering them shelter violated 8th Amendment protections against cruel and unusual punishment. Martin promised to help nudge western cities towards building their shelter inventories at rates comparable to those in New York, Boston, Washington, D.C., and other cities with large homeless populations who nevertheless lack the sprawling encampments common in shelter-scarce cities across the west.
Yet lower courts have consistently interpreted Martin in ways that make bringing people indoors more costly and less feasible. In Grants Pass, Oregon, for example, a lower court ruled the city must locate all new shelters within the city boundaries and that shelter beds offered by faith-based institutions didn’t count. Such rulings ignore the regional nature of homelessness—up to half of San Francisco’s homeless population first became homeless in another jurisdiction—and the extraordinary damage even brief stints of unsheltered homelessness pose to the afflicted.  Â
In Los Angeles County, where just 24 percent of all homeless residents have access to shelter, homeless residents were 4.4 times more likely to die from coronary heart disease than the housed population, 8 times more likely to commit suicide, 15 times more likely to be murdered, and 20 times more likely to die from transportation-related injuries.[1] An outbreak of Hepatitis A at several San Diego homeless encampments in 2017 killed 20 people.
This winter alone, several dozen people in the San Francisco Bay Area were killed by the elements, including cold temperatures and blunt force trauma from felled trees. Shockingly, each year more homeless Americans die of hypothermia in sunny Los Angeles than in freezing New York City (which shelters 96 percent of its homeless population). The average age at death for homeless Californians is about 50 years, 38 percent shorter the housed population (81 years).[2] If a foreign country were doing this to our people, we’d declare war.
Perhaps nothing highlights the problems created by Martin’s unanswered questions than the simple fact that since going into effect, homelessness across the 9th Circuit increased 25 percent while declining 6 percent in the rest of the U.S., and unsheltered homelessness increased 26 percent in the 9th Circuit while rising only 11 percent in the rest of the country.
In the San Francisco v. Coalition on Homeless, the 9th Circuit has an opportunity to clarify its decision in Martin by ensuring local governments have the flexibility and latitude to experiment with differing models of the shelter and housing services needed to bring people indoors and save lives. It should take it.
[1] http://publichealth.lacounty.gov/chie/reports/Homeless_Mortality_Report_2023.pdf
[2] Los Angeles County 51 years, San Francisco City & County 51 years; Santa Clara County 52 years; Orange County 48 years.